30 Ind. App. 12 | Ind. Ct. App. | 1902
Appellant filed its petition to have refunded to it certain taxes which it had paid under protest. The board of commissioners refused to grant the prayer of the petition, and appellant appealed to the court below. The court made a special finding of facts and stated its conclusion of law thereon, which was adverse to appellant.
The only error assigned is that the court erred in its conclusion of law; The material facts found are as follows: That appellant is a duly organized building and loan association under the laws of this State; that by its secretary it did, on May il, 1897, file with the auditor of Marion county a duplicate, verified statement, showing the amount paid in by the shareholders upon shares of stock up to April 1st preceding, and then outstanding, and also the amount loaned to shareholders up to that date and secured by mortgage on real estate listed for taxation, also showing that appellant had loaned to shareholders a sum in excess of the total amount paid in; that the appellant also made a return for assessment on assessment schedule of its personal prop
That prior to the meeting of the board of review in 1897, the auditor caused a notice to be published in a newspaper in Marion county, for two weeks, of the time and place of meeting of said board of review, but did not insert in said notice the name of the appellant as one whose list of valuation of property would be considered, added to, or increased by said board; that in addition to said notice said board of review, two or three days previous to the time for taking up the matter of assessing appellant’s property, sent notice by postal card directed to appellant, and on the lower left-hand corner of said card wrote the name of appellant’s secretary; said postal card stated that the board of review would take up the matter of reviewing the assessments of appellant’s property, and the time when the same would be taken up; that while said board was in session on the 9th day of July, 1897, Wm. II. Schmidt who was then a member of said board called up appellant .by telephone and asked for Charles Schurmann, who was then its secretary; that he was informed that said Schurmann was at his home sick; that said Schmidt called him up at his residence, by telephone, and told him' that the board of review wanted him to come before it; that it was going to take up the matter of considering the list of valuation of appellant’s property, — whether said valuation should be added to or increased; that said Schurmann informed said Schmidt that he was sick and could not attend that day, but would be present the following day; that he did appear before the board on
Counsel for appellant insist that the action of the board of review in making the additional assessment was absolutely void for the following reasons: (1) Because there was no law giving it authority to fix the assessment; (2) because there was no notice to the association and hence the board did not acquire jurisdiction; and (3) because the assessment so made amounted to double taxation, the same property having been assessed against the shareholders. If appellant is right as to either of these propositions, then the judgment can not stand.
As to the first proposition, the statute invests the county board of review with power to equalize valuations made by assessors “by adding to or deducting therefrom such sums as are necessary to fix the assessment at the true cash value.” §8532 Burns 1901. Under this provision of the statute the county board of review has authority to equalize
Our next inquiry is, did the board acquire jurisdiction over the person of appellant? It did not acquire jurisdiction by virtue of the notice given by the auditor by publication in a newspaper, because such notice did not contain the name of appellant as one where the board deemed it necessary to add omitted prperty or to increase the valuation thereof by the assessor. The statute requires this. §8532 Burns 1901. ISTeither did it acquire jurisdiction by having served upon appellant a written notice that it proposed to revise or correct its list, as provided by the statute, supra. Hor did it acquire jurisdiction by addressing to appellant a postal card, upon which was indorsed the name of its secretary, notifying it that its assessment was to be reviewed. The statute makes no provision for such notice. If the board acquired jurisdiction it was by reason of the voluntary appearance of appellant, by its secretary, upon the request that he appear before the board, and was notified that it was going to take up the matter of considering the list of valuation of said association’s property, — as to whether it should be added to or increased. The court found as a fact that the secretary had no special authority or direction by appellant so to appear. A corporation can only act through its officers. The secretary of a corporation is an executive officer. In this instance he was requested to appear before the board. He knew that the board was going to review appellant’s assessment. He voluntarily appeared, submitted to an examination upon which the increased assessment was made, and in his appearance represented appellant. If this was a full appearance, it was a waiver of any defect in the notice, or of any notice whatever. Elliott, App. Proe., §677, and authorities there cited; Hoag v. Old People’s, etc., Society, 1 Ind. App. 28; McClure v. Lucas, 2 Ind. App. 32; Mc
Here appellant and its secretary had been notified both by postal card and by telephone that the board would taire up and consider the matter of reviewing the assessment of appellant’s property, and the time it would be taken up. Appellant was not bound to appear upon such notice, and
Judge Elliott in his work on Appellate Procedure, §677, says: “It has long been established law that a party who fully appears to an action or suit waives all objections to the jurisdiction of the court over his person. If a party desires to object to process he must enter a special appearance for that purpose, for a general appearance waives all objections to the writ or its service. Tt is not material how or in what manner notice is issued or served if it fully accomplishes its purpose by bringing the party into court and affording him an opportunity to answer the complaint or declaration, and this it is held to do whenever there is a full appearance. It is in general true that any act done in a case not accompanied by an express qualification or restriction limiting the appearance to what is called by some of the courts a ‘special appearance’ and by others ‘a qualified appearance,’ is regarded as a general appearance.”
The county board of review is a quasi judicial body. The facts disclosed in this case by the special findings bring the case within the rule declared in Senour v. Matchett, 140 Ind. 636. In that case it was said: “In this tribunal [the board of review], which possess quasi judicial powers, is lodged, by law, exclusive original jurisdiction over the subject-matter of revising and correcting tax assessments. And when it once obtains jurisdiction over the person by virtue of n'otice provided by the statute, or upon appearance of the taxpayer, whose list is called in question, its action or decision in the matter, right or wrong, is binding upon him until set aside or vacated by an appeal or some other direct authorized proceeding.” See, also, the following authorities: Jones v. Rushville, etc., Gas
The third reason urged for reversal is that the increased assessment amounted to double taxation. We' do not think this position is tenable under the facts found. The court found that the increased assessment was “on money loaned by said association out of its earnings from interest and premiums on its loans to certain of its shareholders upon their shares of stock hypothecated as collateral security.” This finding shows that the assessment was not against the stock of the association, but against money loaned on its earnings from interest and premiums. The stock itself was taxable to the several shareholders, except that held by borrowers. Deniston v. Terry, 141 Ind. 677; Harn v. Woodard, 151 Ind. 132; State, ex rel., v. Workingmen’s, etc., Assn., 152 Ind. 278.
The appellant was present when the board of review raised the valuation of its property; its president and directors were advised of what the board did; the board acted as a quasi judicial tribunal, after acquiring jurisdiction by appellant’s appearance, and under such facts its action can not be collaterally attacked.
Judgment affirmed.